Guest Opinion: Supreme Court to decide access to cellphone data

Sunday

Jun 8, 2014 at 6:00 PM

The Fourth Amendment to the U.S. Constitution protects individuals from unlawful searches and seizures. When the Fourth Amendment was drafted, colonial rule was seared in the consciousness of the new nation.

Matthew T. Mangino

The Fourth Amendment to the U.S. Constitution protects individuals from unlawful searches and seizures. When the Fourth Amendment was drafted, colonial rule was seared in the consciousness of the new nation.

The imperialist British government often used Writs of Assitance. Their use was the driving force behind the Fourth Amendment. The writ permitted British officials unlimited access to search homes without regard to whether the occupant committed a crime.

The contempt of drafters is palpable in the language of the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Today, the idea of the police barging into a house without a warrant and rifling through a person’s bank account, correspondence, photographs and personal effects is repugnant.

However, the U.S. Supreme is considering making an almost identical invasion constitutional, and there is no hue and cry — there’s barely a whimper.

The U.S. Supreme Court is considering whether police need a warrant to search the contents of a cellphone seized when making an arrest. The court is considering two cases. One case out of Massachusetts deals with an old-style flip phone, the other a California case deals with a smartphone.

If you carry a cellphone you should be concerned. And you probably do — a Pew Research Center survey taken last January found that 9 out of 10 Americans carry a cellphone. Fifty-eight percent of Americans carry the more sophisticated smartphone. An estimated 6 billion of the world’s 7 billion people have access to the mobile devices, according to CNN.

“Technology now makes it possible for individuals to carry huge quantities of information with them every day,” wrote Yale Law School professor Eugene Fidell and attorney Andrew Pincus in a brief they filed with the Supreme Court.

A 16-gigabyte phone — the smallest available storage capacity for the Apple iPhone 5 — “can store 800 million words of text — well over a football field’s length of books or 16 flat-bed truckloads of paper,” reported Fortune magazine.

The law currently provides that an arresting officer may search an arrestee to discover and remove weapons and to seize evidence to prevent its concealment or destruction. Included in virtually every search is a cellphone.

The Obama administration and the California attorney general’s office urged the court to endorse a rule that would allow police to search any cellphone being carried by anyone arrested for any reason. Sixteen states’ attorneys general asked the Supreme Court to equate the privacy of handheld data with that of “information on paper or in other documentary forms.”

Critics say cellphones, particularly smartphones, and other electronic devices increasingly hold, or provide access to, the most private details of a person’s life — including personal photos, videos, messages, names of friends and associates, banking and financial information, and medical records, among others, reported the Christian Science Monitor.

Justice Antonin Scalia did not seem deeply troubled by the prospect of a cellphone search during an arrest. However, he suggested that it should be limited to evidence of the crime for which the individual was arrested.

The most vocal defender of smartphone privacy was Justice Elena Kagan, who suggested a person can be arrested for driving without a seat belt, “and the police could take that phone and could look at every single email that person has written, including work emails, including emails to family members, very intimate communications, could look at all that person’s bank records, could look at all that person’s medical data, could look at that person’s calendar, could look at that person’s GPS and find out every place that person had been recently because that person was arrested for driving without a seat belt.”

What was once stored away in one’s home is carried around in a cellphone. Should the police have unfettered access to that information?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. follow him on Twitter at @MatthewTMangino.

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